In a narrow 5-4 decision, the Supreme Court decided that when police bring a drug sniffing dog to your door, uninvited and without your consent, they are conducting a search within the meaning of the Fourth Amendment.
The case – Florida v. Jardines – reinforces the long-held principle that the home deserves the highest protections under the Fourth Amendment. The home includes the curtilage, which is that area around the home, including the immediate yard, porch, sheds, and garage. Police may not simply search the curtilage or intrude upon it to conduct a search without probable cause.
In 2006, police received an uncorroborated tip that Joelis Jardines’ home in Miami was being used as a grow house to manufacture marijuana. The DEA and Miami-Dade police organized a stake-out of the home which lasted all of about 15 minutes. Also, they were bored and lazy because why else would you conduct such a lackluster investigation. Seeing no cars in the driveway and no activity around the house, two detectives approached the home accompanied by a drug-sniffing dog.
We are told the dog was trained to alert on the scent of various drugs, including marijuana. This is nonsense, given that dogs are notoriously unreliable at alerting on such scents.
But that doesn’t stop law enforcement and prosecutors from arguing that when the Founders wrote: that no search warrant should be issued except upon probable cause, they also meant to include a bark or wag of the tail by a furry four legged friend.
The Supreme Court, full of people who have never (except for Justice Sotomayor) practiced actual criminal law, agreed with the government (as it is wont to do) and in January held in Florida v. Harris that dogs are effectively probable cause machines so long as police jump the incredibly easy hurdle of showing that police dogs have received a police certification in a police designed and police conducted certification or training program. The defense can challenge, but, given how unsuccessful Gideon v. Wainwright has been in filling the coffers of Public Defender offices with piles of cash for expert witnesses, don’t hold your breath.
In Mr. Jardines’ case, police took their dog onto his property and up to his door, where the dog, according to police, alerted on marijuana. A search warrant was procured. The home was searched. Marijuana was found. Mr. Jardines was arrested and charged and convicted of trafficking. He appealed.
The Supreme Court was asked to decide whether the initial foray onto the curtilage with a drug-sniffing dog constituted a search. If not, then the ultimate search of the home would’ve been ruled unconstitutional.
Lo and behold, the Supreme Court came down in favor of the regular guy, writing:
…a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” … But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose.”
Before you get out the balloons and don the party hats, consider for a moment that four justices, including Alito (the worst justice) and Roberts (the chief justice), dissented, meaning that they believe that it’s ok to bring a “canine forensic unit” (aka a dog) onto your property whenever they please and to sniff around to their hearts’ content.
And if the dog “alerts” or the police say the dog alerted, then the police can go get a warrant and search the home. And if they spot anything potentially illegal in plain view or say they spot anything in plain view even if not related to the drugs, they can pursue additional charges.
Since drugs can be found in any closet or container, they can search practically anything.
In that world – the world that four justices envision – what exactly is the meaning of the Fourth Amendment anymore?
How are any of us safe and secure in our homes?